Qhader (Migration)

Qhader (Migration) [2023] AATA 3338 (30 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Zaujan Bin Abdul Qhader
CASE NUMBER:  2202042
HOME AFFAIRS REFERENCE(S):          BCC2020/1175516
MEMBER:Noelle Hossen
DATE:30 August 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 30 August 2023 at 1:29pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant has a long list of cancelled courses –– poor record of completion of courses – using student visa to maintain ongoing residence – not satisfied that the applicant intends genuinely to stay in Australia temporarily – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 January 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 15 March 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The applicant appeared before the Tribunal on the 26 July 2023 to give evidence and present arguments.
On 25 January 2022 the delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student.
On the 15 February 2022 the applicant lodged an appeal to the Tribunal and attached the decision of the Department. He also provided a copy of the delegate’s Decision.
On 21 March 2023 the Tribunal wrote to the applicant a s.359(2) letter as follows.
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a //requirement of the visa for you to be:
·enrolled in a registered course of study; and
·a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below.
The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.
The letter also noted the following:
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The applicant was given an extension of time to provide the information requested.
The applicant responded to the request for information on the 25 April 2023 and provided the following documents:
Student Visa Information Questionnaire
Statement of Applicant
AAT oral Decision and Related Case Decision record
Affidavit of financial support
CoE Advanced Diploma of Leadership and Management
CoE Diploma of Business
Fixed Deposit Statement
Indian ID card
Onshore Offer
Letter from College
The Tribunal caused a search of PRISMS, being the Provider Registration and International Student Management System register, to be undertaken. The purpose of this search was to ascertain whether the first named applicant was enrolled in a registered course.
According to the PRISMS website, the Department of Education, Skills and Employment is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students. It is recorded that PRISMS is a computer system developed by the Department in association with the Department of Home Affairs for the purpose of receiving and storing information about accepted overseas students that is given to the Secretary under the Education Services for Overseas Students Act 2000. It is further noted that PRISMS provides a secure system for providers of registered educational institutions to comply with legislative requirements by issuing confirmations of enrolments as ‘evidence of enrolment’ in a registered full-time course as required by the Department of Home Affairs and reporting changes in course enrolment, particularly where study ceases, or the duration of the study changes.
It is therefore apparent that PRISMS is a business record of the Department of Education, Skills and Employment and is used by the Department of Home Affairs as evidence of enrolment for the purposes of assessing the grant of student visas. While it is possible providers may not update PRISMS as required, the Tribunal accepts that PRISMS is a reliable record of enrolments, unless there is specific evidence to the contrary in relation to a particular case.
The PRISMS search revealed that the applicant did hold a current confirmation of enrolment in a registered course as of 18 July 2023, being the date of the search.
On 26 July 2023 the Tribunal sent the following s.359A letter to the applicant:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that all of the courses that you were enrolled in from the 26 February 2018 to the 27 March 2023 were cancelled. The PRISMS records also indicate that 5 of these courses were cancelled because you did not commence your studies. The Tribunal seeks an explanation of why these courses were cancelled. The member has also requested copies of the Certificates and Diplomas that you say that you have completed.
The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant you a Student visa.
The applicant was given until 21 August 2023 to respond as he sought an extension of time to provide the information to comment on or respond to the information.
On 21 August 2023 the applicant responded by providing submissions with some documents attached such as receipts for payment of course fees.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant arrived in Australia from India on the 13 February 2018. His visa was valid until the 15 March 2020.Whilst holding the visa he had multiple enrolments cancelled for non-commencement of studies.
The applicant’s visa had been refused by the Department and he had appealed to the Tribunal previously. He blames the period of time between the time of the hearing and the review Decision as being the reason why he says he lost valuable time as his visa was still valid as at March 2020. He said that he applied for a further visa to study a Diploma of Business and Advanced Diploma of Leadership and Management with Lennox Institute. He said that the course end date was the 30 January 2022, and he was attending classes regularly. He said that he found out that his mother had Covid 19 in India. He said that this impacted his physical and mental health as she was quite ill for 2 to 3 months.
Even if the Tribunal were to accept that his mother’s health or the fact that the Decision of the AAT in 2020 was a factor in his unsuccessful attempts to study and complete his studies this does not cover the years between 2021 to 2023.
The applicant has a long list of cancelled courses. He has changed career direction from business to automotive mechanic. His academic history is less than satisfactory. The Tribunal does not consider that his academic progress, over the last 5 years supports a finding that he has been a satisfactory student, although he has provided some evidence that he has completed some units in his Certificate III in Light Vehicle Mechanical Technology that he commenced in 2023.
At the time of the Decision of the Delegate of the Department he stated as follows:” The applicant provided evidence of completing a Diploma of Leadership and Management at Australian Chamber of Education but given they are not a CRICOS registered provider this Diploma cannot be considered. It is also noted that in the applicant’s genuine temporary entrant statement that they make mention of starting study at UNSW but no evidence of this has been provided. The applicant also makes mention of an English course but there is no evidence of this and also does not show in their PRISMS history. It also overlaps with other courses the applicant completed during this time.”
The applicant did mention at the hearing before the Tribunal that he had completed a Diploma of Business. In the letter requesting further information dated the 26 July 2023 to the applicant from the Tribunal he was required to provide copies of all Certificates and Diplomas that he had completed whilst on a student visa in Australia. The applicant responded and apologised as he said that he had not completed the Course and did not mean to say that he had at the hearing.
At the time of the delegate’s decision the applicant was proposing to complete the Diploma of Leadership and Management. The delegate had regard to the value of the course to the applicant’s future. The delegate found that the applicant did not clearly demonstrate the benefit that undertaking the proposed courses in Australia would provide to their career prospects. At that time the applicant stated that the proposed courses would enhance his business and management related skills which can be utilised back in his home country for the growth of their family business. The delegate found that even though the applicant had given reasonable detail about the vision that they had for the business he had not referred to how obtaining an Australian qualification would aid them in expanding their business and career potential. The delegate found that the applicant had not provided evidence of research into the prerequisites of enhancing the family business. The Delegate found that the applicant had not provided a business plan, or any other research undertaken what it would involve starting the business.
The Tribunal had the same reservations as the Delegate, as the applicant did not provide a business plan or any other detailed evidence to show that the proposed course would enhance his career prospects in his home country or a third country.
At the time of the hearing before the Tribunal the applicant’s position regarding his career changed markedly. He was proposing to complete a Certificate III in the Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis. The applicant set out in writing that the studies will provide several benefits compared to studying in India including:
“Quality education: Australia is known for providing high-quality education with a focus on practical learning. The education system is designed to equip students with the skills and knowledge they need to excel in their careers. Australian vocational courses are industry oriented and offer hands-on training to students.
Recognition: Australian qualifications are recognised globally and a highly valued by employers. Studying in Australia can provide me with a competitive edge in the job market overseas.
Networking opportunities: studying in Australia can provide me with the opportunity to build a network of contacts that can be beneficial for Mike future careers. The education system in Australia promotes collaborative learning allow students to work in groups and build relationships with their peers.
Cultural diversity: Australia is a multicultural country people from different parts of the world. Studying in Australia can provide me with the opportunity to learn about different cultures and make friends with people from different backgrounds
Exposure to advanced technology: Australia is known for its advanced technology and innovation. Studying in Australia can provide me with the opportunity to learn about the latest technology and gain practical experience in using it.
In summary studying certificate III and IV in light vehicle mechanical technology and automotive mechanical diagnosis in Australia can provide me with high-quality education, global recognition, networking opportunities, exposure to advanced technology and cultural diversity.”
The Tribunal considers that the evidence as set out above is full of generalisations and is information that he could have easily accessed from the internet. The Tribunal finds that the evidence is vague and and does not provide sufficient detail about the course of study itself. It does not provide sufficient detail as to why he is not seeking to study in his home country because he has already completed a Bachelor of Mechanical engineering in his own country. He said that he had completed a short period of internship before travelling to Australia. He did not provide any evidence of the remuneration that he hoped to be paid upon returning to his home country. The Tribunal places a lot of weight on those facts against the applicant’s case.
He said that he has worked in Australia. He said he is now working in construction as a water proofer. His answers to the questions posed by the Tribunal appeared guarded. He said that he earned $16 per hour but then changed his mind when questioned about the rate of pay, by the Tribunal to $24 per hour and he works 20 to 22 hours a week. He did previously work for Uber and packing fruit. He did not provide a lot of information regarding his expenses in Australia but did state that he rents and shares with other people and pays rent of $200 per fortnight. He did not complete the sections of the questionnaire that set out expenses and income. The Tribunal is of the view that the applicant’s economic circumstances in Australia specifically his capacity to earn Australian dollars in ordinary employment, presents a significant incentive for the applicant to wish to remain in Australia. The Tribunal places a lot of weight on those facts against the applicant’s case.
He does have some community ties in Australia. He said that his mates from school in India, live here and are now permanent residents as they have lived in Australia for 8 to 9 years. He said that he does attend prayers near his home and plays soccer. The fact that he has some community ties in Australia may provide an incentive for him to wish to remain to live in Australia. The Tribunal does place some weight on those facts against the applicant’s case.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on the 12 February 2018 as the holder of a Higher Education student Visa. The applicant has not completed and passed any course in the Higher Educational sector or the vocational sector in its entirety since his arrival in Australia.
The proposed study now would extend the applicant’s stay until at least 2025. The Tribunal finds that the length of this proposed additional stay, creates serious concerns that the applicant is studying for the purposes of staying in Australia. Whilst the Tribunal accepts plans can change, this is not the conduct of a genuine temporary student rather it suggests the applicant has decided to extend his stay in Australia by utilising the student Visa program.
On balance the Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia it is noted that the applicant was previously granted a visa, specifically to enable him to achieve that goal. On balance the Tribunal is not satisfied that the information the applicant has provided regarding the applicant circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student Visa rather than due to a genuine interest in that course of study and overall academic progress. The applicant appears to be using the student Visa program as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.

There is no evidence before the Tribunal regarding the following factors indicated by direction number 69: economic circumstances of the applicant in his home country other than he does not own any personal assets, and the applicant’s economic circumstances in Australia relative to India.
The Tribunal accepts that his family ties may provide some incentive for the applicant to return to his home country. He said at the hearing that he has returned to India for 2 months on one occasion since his arrival. The Tribunal places some weight in favour of the applicant’s case on the fact that the applicant does have family ties in his home country and that this may provide him with an incentive to wish to return to live there when he finishes his courses.
There is no evidence before the Tribunal that the applicant personally owns any assets or hold business ties to his home country. The applicant did provide a bank statement of a fixed deposit for 20 Lacs, but it was difficult for the Tribunal to work out whether the funds actually belonged to the applicant because of the quality of the exhibit. Nevertheless, the funds can easily be transferred to Australia as it is a moveable asset. The Tribunal places some weight on those facts against the applicant’s case.
The applicant confirmed in his oral evidence that he does not have to complete military service in India and that there is no political or civil unrest in his home country.
The applicant indicated that he had never been refused a visa and the evidence is that the applicant has complied with the migration laws of other countries, so the Tribunal places some weight on those facts in favour of the applicant’s case.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which supports a genuine intention to remain in Australia temporarily recognising the possibility that this may change over time, to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia the Tribunal is concerned the student Visa may be used primarily for maintaining ongoing residence.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Noelle Hossen
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2023] AATA 3338

30 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Intention

Judicial Review

Procedural Fairness

Statutory Construction

Appeal